THE M K TATA TRUST,MUMBAI vs. CIT (EXEMPTIONS), MUMBAI

5. On the facts and under the circumstances of the case and in law the learned Commissioner of Income tax erred in passing order u/s 263 on the premise that the department had preferred a High Court appeal in the case of J.R.D Tata Trust and Sir Ratan Trust, the case of which has been relied upon by the assessee throughout its proceedings.

On the facts and under the circumstances of the case and in law, the learned Commissioner of Income Tax erred in passing order u/s 263 without appreciating the fact that High Court appeal filed by the department in the cases relied upon by the assessee has not been admitted till date of passing order u/s 263 Without prejudice to the above,

6. On the facts and under the circumstances of the case and in law, the learned CIT erred in setting aside the order of AO and directing the assessment de-novo on the grounds that shares held by appellant are non-corpus, without appreciating the fact that the deed of settlement of 1959 submitted to CIT did mention the shares being settled therein as trust funds which is nothing but corpus and the details of shareholdings as on date arising out of Bonus shares as confirmed by the company (i.e Tata Sons Ltd). Hence the action of CIT of invoking revisionary powers is bad in law.

& 1743/Mum/2024 The M K Tata Trust A.Y. 2015-16 & 2016-17 The appellant craves for leave to add to alter and/or withdraw the above ground of appeal

, if necessary.”

2. Fact in brief is that the assessee has filed return of income on 16.09.2015 declaring Nil income and claimed exemption as per the provisions of section 11 of the Act and the assessment u/s 143(3) of the Act was made on 20.12.2017 assessing the total income at Rs. 4,19,250/-. Thereafter, the ld. CIT(E) has initiated proceedings u/s 263 of the Act and passed order u/s 263 of the Act on 17.03.2021 for making denovo assessment to verify applicability of provisions of section 13(1)(d) on the issue of holding of 2421 shares of M/s. Tata Sons by the assessee. In pursuance of order passed u/s 263 of the Act, the assessing officer has passed order u/s 143(3) r.w.s. 263 of the Act on 12.03.2022 vide which the claim of depreciation of Rs. 4,19,250/- was disallowed as per the provisions of section 11(6) of the Income Tax Act.

3. However, the ld. CIT(E) has again passed order u/s 263 of the Act on 12.03.2021 stating that assessee was having investment in shares of M/s. Tata Sons which has been prohibited as per the provisions of section 11(5) r.w.s. 13(1)(d) of the Act unless it is covered by the exceptions. The ld. CIT(E) further stated that in the case of the case during the course of assessment proceedings it has submitted the details relating to investment in shares and from the detail it was found that assessee did not substantiate the investment in shares were covered by the exceptions provided in proviso (i) and (ia) of section 13(1)(d) of the Act. Therefore, the ld. CIT(E) held that order passed by the assessing officer is erroneous in so far as it is prejudicial to the interest of the revenue as the assessing officer passed the order without the basic verification as stated above. The assessee has objected to the re-initiated proceedings u/s 263 of the Act stating that revisionary proceeding cannot be re-initiated when earlier 263 order was already passed on the same issue. The assessee also pointed out that & 1743/Mum/2024 The M K Tata Trust A.Y. 2015-16 & 2016-17 revisionary proceedings cannot be invoked for covered matter in the assessee’s case for the same assessment year. The assessee has also referred the various judicial pronouncements as mentioned at page 7 to 9 of the order passed u/s 263 of the Act. The assessee has also relied upon the decision in the case of JRD Tata vs DCIT (2020) 122 taxmann.com 275 (Mumbai-Trib) and Sir Ratan Tata Trust vs Deputy Commissioner Income Tax, Exemption Circle 2(1), Mumbai (2020) 122 taxmann.com 273. However, the ld. CIT(E) has not agreed with the submission of the assessee and stated that during assessment proceeding assessee has not provided any document to substantiate that shares in Tata sons were part of corpus as on 01.04.1973. He further stated that in the copy of deed of settlement dated 24.03.1959 nowhere it is mentioned that shares should be used as corpus of the trust and also did not provide any document/letter from the donor that shares were part of corpus of the trust. The ld. CIT(E) also pointed out that in clause 1 of the trust deed it is also mentioned that the trustees can sell the shares. Therefore, the CIT(E) was of the view that settler had made provisions of sale of such shares and securities like any other normal investment which do not have the character of the corpus. The ld. CIT(E) held that assessing officer failed to take into account that as per section 13(1)(d) of the Act that only the shares of the company forming part of the corpus as on 01.06.1973 would be covered by exception clause and the assessee could not prove that share originally acquired by it prior to 1973 were part of its corpus and no direction letter was submitted in this regard. Therefore, the assessment order passed u/s 143(3) r.w.s. 263 of the Act dated 12.03.2022 was held as erroneous in so far as it was prejudicial to the interest of the revenue within the meaning of Explanation 2 to section 263 of the Act.

“ii. Details of investment held as on 31.03.2015 and explain as to whether the investments are as per provisions of section 11(5) of the I.T Act.

(iii) In case the shares were donated by any donor then copy of direction letter/gift deed may be furnished.

(iv) If shares were acquired by any other means, then please show that they become part of corpus of the Trust. Documents including balance sheet as per requirement of Charity Commissioner to show that the same were held as corpus as on 01.06.1973. Please show cause in writing alongwith documentary evidences as to why the exemption u/s 11 should not be disallowed.

Please note that in case of non-compliance within stipulated time, penalty proceeding may be initiated u/s 271(1)(b) of the IT Act, 1961 of Rs. 10,000/- for non-compliance of notice u/s 142(1) of the IT Act, as mentioned above.”

Sl. No. Name & address PAN Nature of Total Dividend of the dividend investment investment received during payer F.Y. 2014-15 1 Tata Sons Ltd. AAACT 4060 A Shares forming Rs. 1,35,000/- Rs. part of the corpus 1,93,68,000/- received on settling of the trust “(ii) Details of investment held as on 31.03.2015 and explain as to whether the investments are as per provisions of section 11(5) of the I.T. Act.

The trust is registered with the Directorate of Income Tax (Exemption), Mumbai u/s 12A of the Income Tax Act, 1961 under Registration No. TR/5060. The trust is also registered with the Charity Commissioner, Mumbai vide Registration No. E- 1631 (Mumbai). The trust claims to be engaged in charitable activities in the field of Education. The assessee trust has accordingly claimed exemption u/s 11 of the I.T. Act.

The Trust holds 2421 shares of Tata Sons Ltd which were settled by Late Shri M.K Tata in the Trust i.e. The MK Tata Trust as corpus donation in the year 1959. The trust has never utilized its receipts for making investment in shares of Tata Sons Limited.

Further, Section 1I(5) has been introduced w.e.f. 1.4.1983 and assessee had received shares as corpus donation in the year 1959 on settling the trust.

Section 13 specifies certain cases to which section 11 shall not apply, section 13(1)(d) deals with investments which violate the provisions of Section 11(5). However there are certain exceptions in section 13(1)(d) , referred in proviso (i) (ia) as per which a trust is allowed to hold shares of listed company.

Section 13(1) (d) is reproduced as follows:-

(d) in the case of a trust for charitable or religious purposes or a charitable or religious institution, any income thereof, if for any period during the previous year (i) any funds of the trust or institution are invested or deposited after the 28th day of February 1983 otherwise than in any one or more of the forms or modes specified in sub-section (5) of section 1l; or (ii) any funds of the trust or institution invested or deposited before the 1st day of March, 1983 otherwise than in any one or more of the forms or & 1743/Mum/2024 The M K Tata Trust A.Y. 2015-16 & 2016-17 modes specified in sub-section (5) of section 11 continue to remain so invested or deposited after the 30th day of November, 1983,; or (iii) any shares in a Company, other than- (A) shares in a public sector company; (B) shares prescribed as a form or mode of investment under clause (xii) of sub-section (5) of section 11, are held by the trust or institution after the 30th day of November, 1983:

Provided that nothing in this clause shall apply in relation to- (i) any assets held by the trust or institution where such assets form part of the corpus of the trust or institution as on the 1st day of June, 1973; (ía) any accretion to the shares, forming part of the corpus mentioned in clause (i), by way of bonus shares allotted to the trust or institution; (ii) any assets (being debentures issued by, or on behalf of, any company or corporation) acquired by the trust or institution before the 1st day of March, 1983; (iia) any asset, not being an investment or deposit in any of the forms or modes specified in sub-section (5) of section 11, where such asset is not held by the trust or institution, otherwise than in any of the forms or modes specified in sub-section (5) of section 11, after the expiry of one year from the end of the previous year in which such asset is acquired or the 31st day of March, 1993, whichever is later; (iii) any funds representing the profits and gains of busines, being profits and gains of any previous year relevant to the assessment year commencing on the 1st day of April, 1984 or any subsequent assessment year.

Explanation.- Where the trust or institution has any other income in addition to profits and gains of business, the provisions of clause (iii) of this proviso shall not apply unless the trust or institution maintains separate books of account in respect of such business.

Assessee's case is squarely covered with proviso (i) & (ia) of Section 13(1)(d) as the shares were received as corpus donation and thereon no of shares has been accredited on account of bonus shares being issued to the company.

As mentioned above at point 1(i) the shares were received as corpus donation and thereon number of shares has been accredited on account of bonus shares being issued to the company.

Copy of Deed of Settlement dated 24.03.1959 is enclosed.

(iv) If shares were acquired by any other means, then please show that they become part of corpus of the Trust. Documents including balance sheet as per requirement of Charity Commissioner to show that the same were held as corpus as on 01.06.1973. Please show cause in writing alongwith documentary evidences as to why the exemption u/s 11 should not be disallowed. / The documents asked pertains to the year 1973. It is practically not possible to produce 48 years old documents as the law requires to preserve records up to 6 years only, however, in order to prove the same, we are hereby attaching the copy of Deed of Settlement dated 24.03.1959. Further, to confirm the period of holding, we are attaching the Confirmation Letter from Tata Sons Private Ltd. The same is accepted in past assessments as well.

We rely on the following recent case laws wherein the below mentioned trusts are holding the shares of Tata Sons Limited. (Copies enclosed)

In case of JRD Tata Trust V, Deputy Commissioner of Income Tax, Exemption Circle 2(1), Mumbai, [2020] 122 taxmann.com 275 (Mumbai - Trib.), on appeal Mumbai ITAT held - Once it is held that the shareholdings in Tata Sons Limited is in the nature of corpus, and as such, covered by the proviso to Section 13(1)(d), It cannot be open to hold that the exemption will be forfeited by Section 13(2)(h). The CBDT, after a detailed examination of that aspect of the matter, has concluded that these shares were held as the corpus, which was a precondition for the issuance of notification under section 10(23C), and notified the assessee trust under section 10(23C) as such. The material facts remain the same as these were then, and there is no occasion to revisit those factual findings. The application of Section 13(2)(h), in such a situation, is wholly academic. The benefit given under proviso to Section 13(1)(d) cannot be taken away by invoking Section 15(2)(h). In response to a question raised, the Departmental Representative could not even point out as to which specified person under section 13(3) needs to be probed or holding a substantial interest in the companies in which investments are made by the assessee. All that he has emphasized is that the matter needs to & 1743/Mum/2024 The M K Tata Trust A.Y. 2015-16 & 2016-17 be probed in more detail and that submission is no more than a submission pleading for more roving and fishing inquiries - Something which cannot be meet any judicial approval. Unless there is a specific disabling clause to that effect, merely because the assessee trust has control over the investee company, the benefits envisaged for the charitable institutions, which meet other statutory requirements, cannot be declined. Once it is found that assessee trusts hold shares in a certain company, all that is required to be seen is whether these shares are held validity under section 11(5) read with Section 13(1)d). There was no legal embargo on the voting rights of the assessee trust or legal restrictions in the rights of the assessee trust to invest in the companies in which investments have been made. Quite clearly, therefore, the assessee trust validly holds these shares in Tata Sons Ltd.

In case of Sir Ratan Tata Trust v. Deputy Commissioner of Income Tax, Exemption Circle 2(1), Mumbai, [2020] 122 taxmann.com 273 (Mumbai - Trib.), on appeal Mumbai ITAT held - Once it is held that the shareholdings in Tata Sons Limited is in the nature of corpus, and as such, covered by the proviso to Section 13(1)(d), it cannot be open to hold that the exemption will be forfeited by Section 13(2)(h). The CBDT, after a detailed examination of that aspect of the matter, has concluded that these shares were held as the corpus, which was a precondition for the issuance of notification under section 10(23C), and notified the assessee trust under section 10(23C) as such. The material facts remain the same as these were then, and there is no occasion to revisit those factual findings. The application of Section 13(2)(h), in such a situation, is wholly academic. The benefit given under proviso to Section 13(1)(d) cannot be taken away by invoking Section 13(2)(h). In response to a question raised, the Departmental Representative could not even point out as to which specified person under section1 3(3) needs to be probed for holding a substantial interest in the companies in which investments are made by the assessee. All that he has emphasized is that the matter needs to be probed in more detail and that submission is no more than a submission pleading for more roving and fishing inquiries - Something which cannot be meet any judicial approval. Unless there is a specific disabling clause to that effect, merely because the assessee trust has control over the investee company, the benefits envisaged for the charitable institutions, which meet other statutory requirements, cannot be declined. Once it is found that assessee trusts hold shares in a certain company, all that is required to be seen is whether these shares are held validly under section 11(5), read with Section13(1) (d). There was no legal embargo on the voting rights of the assessee trust or legal restrictions in the rights of the assessee trust to invest in the Companies in which In view of the above we hereby state that no provision of Section 13(1)(d) have been violated and hence exemption u/s 11 of the Act cannot be disallowed.”

“13. We have considered the rival submissions and perused the material available on record. During the course of hearing, we find that the Assessing Officer, pursuant to directions issued by the CIT vide impugned order passed under section 263 of the Act, accepted the contentions of the assessee and made no further disallowance on the issue on which proceedings under section 263 of the Act were initiated and accordingly passed order dated 12.03.2022 under section 143(3) r.w. section 263 read with section 144B of the Act. Copy of the said order was furnished by the learned A.R. and same was taken on record.

“1. On the facts and under the circumstances of the case and in law the Commissioner of Income tax erred in invoking revisionary powers u/s 263 without appreciating the fact that the order passed by AO is neither erroneous nor prejudicial to the interest of Revenue, hence bad in law.

2. On the facts and under the circumstances of the case and in law the learned Commissioner of Income tax erred in re-initiating revisionary proceedings u/s 263 without appreciating the fact that there was no error on the part of the assessing officer as the ground on which revision was sought was already inquired and concluded by the AO in the erstwhile de-novo proceedings initiated on account of first order u/s 263.

4. On the facts and under the circumstances of the case and in law, the learned Commissioner of Income tax erred in outstaring its jurisdiction by not adhering to Supreme Court Judgement in case of Malabar Industrial Co. Ltd where it was held that both the twin conditions "erroneous" and "prejudicial to the interest of revenue" has to be fulfilled before initiating revisionary proceedings u/s 263

5. On the facts and under the circumstances of the case and in law the learned Commissioner of Income tax erred in passing order u/s 263 on the premise that the department had preferred a High Court appeal in the case of J.R.D Tata Trust and Sir Ratan Trust, the case of which has been relied upon by the assessee throughout its proceedings.

On the facts and under the circumstances of the case and in law, the learned Commissioner of Income Tax erred in passing order u/s 263 without appreciating the fact that High Court appeal filed by the department in the cases relied upon by the assessee has not been admitted till date of passing order u/s 263 Without prejudice to the above,

6. On the facts and under the circumstances of the case and in law, the learned CIT erred in setting aside the order of AO and directing the assessment de-novo on the grounds that shares held by appellant are non-corpus, without appreciating the fact that the deed of settlement of & 1743/Mum/2024 The M K Tata Trust A.Y. 2015-16 & 2016-17 1959 submitted to CIT did mention the shares being settled therein as trust funds which is nothing but corpus and the details of shareholdings as on date arising out of Bonus shares as confirmed by the company (i.e Tata Sons Ltd). Hence the action of CIT of invoking revisionary powers is bad in law.

The appellant craves for leave to add to alter and/or withdraw the above ground of appeal, if necessary.”

Order pronounced in the open court on 06.09.2024.